Drugs and drug addiction have caused significant destruction to families and communities. California authorities have noticed these effects, thus enacting rules to curb the sale, possession, or use of controlled substances. Under Health and Safety Code (HS) 11350, controlled substances consist of narcotics and illegal and legal prescription drugs. If found in possession or control of these substances, you risk severe consequences, including jail incarceration and hefty court fines.
At the Los Angeles Criminal Attorney, we understand that possession of a controlled substance is a prevalent crime since you will be charged and face severe penalties even when found with a minuscule quantity of drugs. Our attorneys understand the intricacies of drug crime laws and will use the experience to prevent a conviction or lower the charges.
Definition of Possession of a Controlled Substance
Otherwise known as drug possession or simple possession, possession of a controlled substance is defined under HS 11350 as having under your control substances like heroin or prescription drugs obtained without proper prescription. The narcotics prohibited under this statute are placed in the US controlled substance schedule, and they include:
- And painkillers like oxycodone
California has five schedules of controlled substances, which are:
- Schedule I narcotics like cocaine and opiates
- Schedule II substances consisting of raw opium and morphine
- Schedule III substances like pentobarbital
- Schedule IV substances consisting of prescription drugs, including zolpidem
- Schedule V substances like codeine
After the adoption of Proposition 47, drug or simple possession is a misdemeanor crime, but a conviction could still have severe consequences, including:
- Massive court fines
- Jail incarceration
- Criminal record
- Problems finding employment or college admission
- Problems leasing an apartment
When you are a repeat offender or charged with aggravated drug possession, you will face felony charges, and the punishment will be harsher. However, before facing these consequences, the prosecutor must illustrate the crime's elements beyond reasonable certainty.
The prosecutor will gain a conviction for drug possession if they can prove the following elements of the crime:
- You Indeed possessed a Substance Listed Under the US Controlled Substances Act
Possession of a drug means the drug is under your control, either in your person or through someone else. In addition, physical contact with the drugs does not necessarily suggest possession. You can possess drugs in three distinct ways; constructive, actual, and joint. Actual possession means the substances are in your immediate or physical control. The illicit substances could be in your briefcase, bag, or vehicle trunk.
The other form of possession is constructive. Although it has no clear definition, you will face charges for HS 11350 violations if you store the drugs in a location where you can easily retrieve them, like your car trunk, locker, or home. Under constructive possession, the prosecutor must show that the narcotics were in a location you could repossess them and have actual control. Also, proving that someone was storing the substances on your behalf can prove constructive possession.
The last possession type is the joint one. Joint possession is an extension of actual and constructive ownership as it involves two persons owning drugs. It means that you and another individual had actual or constructive possession of the drugs. For instance, if you and your roommate raise money to purchase cocaine, you will be charged with joint possession if the drugs are recovered in a jointly owned space.
Under this element, the prosecutor can prove you are guilty if they furnish the court with evidence showing a controlled substance was found in your possession in any of these discussed forms. Also, the D.A. must identify the individual who had contact with the substance. The drugs being found near or with someone close to you does not make you guilty of the offense.
- You Knew of the Drugs’ Presence
Illustrating that the drugs were on you or in a place you could retrieve them will not be enough for the prosecutor to gain a conviction. They must prove that you were aware these drugs were in your presence and that they were controlled substances. The D.A. does not need to confirm you knew the kind of drug in your possession, its chemical makeup, or its effects. All they need to show is that you were aware the sort of substance in your control is defined under the Controlled Substances Act or is illegal. If you thought the drugs were something else like flour or someone placed them without your knowledge, the threshold of the statute will not be met, making you innocent.
- The Substance Was in Usable Quantity
The quantity of substance in your person must also be usable. Usable quantity does not necessarily mean large amounts, but enough to reasonably ingest and cause the usual effects. Residue or small traces of an illegal drug are not usable, meaning you cannot be convicted for their possession.
The quantity of the substance in your possession determines the charge you will face. When the amount is small but usable, it will be intended for personal consumption. However, when the quantity is significant, the drugs will be considered to have been for sale, and you could face serious charges for drug dealing. The prosecutor must show your intentions to the court. If the substance in your person at the time of arrest was packaged in small amounts or packets, it shows you intended to sell.
Punishment for Controlled Substance Possession
Simple possession is frequently charged as a misdemeanor after Prop 47 reclassified the offense from a felony to a misdemeanor. When sentenced, you will face no more than twelve months in a Los Angeles county jail or pay a court fine not exceeding $1,000. If you have an excellent attorney to negotiate with the court, you could be sentenced to summary probation instead of spending time behind bars. Nonetheless, you must meet particular stipulations like random drug checks and searches under probation.
Misdemeanor probation is not for everyone. It is only reserved for individuals with no criminal record for violent crimes. If you have been convicted of a gun crime or murder, or your name appears on the list of state sex offenders, you will face felony charges for drug possession whose sentence is no more than 36 months.
Immigration Consequences of Drug Possession
A sentence for simple possession will have significant consequences on your immigration status. Immigration laws categorize particular convictions as deportable and inadmissible offenses. If you are an alien sentenced for offenses, you could be deported or denied re-entry upon return.
Effects of Drug Possession Conviction on your Firearm Rights
You risk severe consequences when a violation of HS 11350 is charged as a felony. If you own a firearm, you will lose the right to purchase or have one in California after a felony conviction. Failure to surrender your gun to the authorities after a felony sentence for simple possession will result in additional firearm violation charges.
Defenses for Drug Possession
Defeating HS 11350 violation charge is challenging but possible. The war on drugs and drug addiction has seen authorities put a lot of time and willingness into prosecuting those involved. Sadly, even innocent people are caught up in the war leading to wrongful convictions. Therefore, even if you believe you are not guilty, you should retain adequate legal representation to help contest and defeat the charges.
With the help of a criminal attorney, you can evaluate your case and the DA’s evidence to develop a solid defense against the charges. Some of these defenses are:
1. You Lacked Possession or Control Over the Substance
The D.A. has the task of proving that the controlled substance was in your actual, joint, or constructive possession beyond reasonable certainty. If someone else planted the drugs or you did not know of their presence, your attorney can challenge the charges and have the case dropped or charges reduced.
2. You Possessed the Substance Temporarily or Momentarily
Particular circumstances in your case can allow you to use the momentary or transient possession as a defense. Your defense attorney can assert that you temporarily possessed the controlled substance to dispose of it or prevent other individuals from having illegal access. Besides, if you were taking the drugs to the police at the time of arrest, you would defeat the charges. Nonetheless, when you are arrested trying to dispose of a narcotic to conceal it from the police, transient possession will not be a defense in court.
3. Illegal Search and Seizure
The 4th amendment in the United States Constitution protects you from illegal search and seizure by law enforcement. With the intensified war on drugs, law enforcement officers can be overzealous when discharging their duties to the extent of conducting investigations without the relevant search warrants. When police obtain evidence of controlled substance possession using unreasonable search and seizure, your attorney can petition the court to exclude the evidence from the case. This is good news for your case because there will be a charge reduction or dismissal due to insufficient evidence.
4. Lawful or Valid Prescription
Prosecutors have the burden of proving that the prescription drugs in your possession were not validly prescribed by your veterinarian, dentist, doctor, or podiatrist. If they cannot illustrate the prescription was illegal or invalid, your attorney can produce a written prescription from your doctor to prove otherwise and have the case thrown out. The doctor or dentist issuing the prescription must be licensed; otherwise, it will be deemed an invalid prescription.
Prop 64 legalizes possession of marijuana by citizens or adults over 21. Despite the bill's adoption, there is a limit or cap on the quantity of cannabis you should possess. Prop 64 makes it legal to have an ounce or 28.5g of cannabis or six marijuana plants. If the quantity in your possession exceeds this limit provided by the law, you will be charged with an HS 11357 violation whose conviction results in half a year in jail or a monetary court fine of $500.
Nonetheless, when you are 18 or younger and are arrested for having marijuana, the offense will be treated as an infraction. An infraction has lesser penalties than a misdemeanor charge because it does not involve jail incarceration or payment of court fines. An infraction sentence attracts conditions you must abide by for a given duration, like mandatory community labor hours and the court-imposed drug education program.
Also, it is criminal for an underage person younger than 21 to have hashish or concentrated marijuana. Again, marijuana laws prohibit adults from having more than 8 grams of hashish. If you are charged for possession of hashish exceeding the legal limit, a sentence will attract jail incarceration for at most twelve months, a court-ordered fine of $500, or both jail time and monetary fine. The punishment for the same offense when you are over eighteen but younger than 21 is a court fine of $100. However, the court will not order you to pay a fine when below eighteen. Instead, they will impose mandatory four-hour drug education courses and ten hours of community labor. The punishment will be enhanced to six hours of the drug counseling program and twenty hours of community labor when you are under 18 and a repeat offender.
The location of an arrest for marijuana possession impacts the punishment. When you are arrested with any marijuana amount on a K-12 school compound when learning is in progress, the court will impose a monetary court fine of at most $250 if it is your first offense as an adult. Nevertheless, if you were a minor at the time of apprehension, the offense will be filed as an infraction punishable by community hours and a mandatory drug education course.
Methamphetamines (Meth) Possession
Also known as meth, crank, glass, or crystal meth, methamphetamine is an illegal drug used to treat ADHD. And because meth is a prescription drug, you can only be arrested for having the drugs without proper treatment from an accredited medical practitioner.
State and federal government statutes regulate meth use. Having meth without a permit is an offense in HS 11377 but for licensed medical practitioners, possessing the prescription drug is not a crime.
After an apprehension, you could face simple possession or possession for sale. The decision on the charges you will face depends on your testimony or witness statement. Should you or a witness admit you possessed the substance for your use, you will face simple possession counts in HS 11377. Nonetheless, when the evidence shows the drugs were intended for sale, the prosecutor will prefer HS 11378 violation charges.
Similarly, the D.A. will consider the quantity of crystal meth in your possession. If you only had small amounts of the drug, it would be deemed to have been intended for your use. On the other hand, having high amounts of meth will be construed as a possession for sale.
Another factor for consideration when determining the type of charges to file for having meth is the packaging method. If you had multiple baggies of the crank at the time of arrest, the prosecutor would conclude you intended to sell. Having a single bag of meth during arrest suggests the substance was for personal use.
Possession for use or simple possession is filed as a misdemeanor. When sentenced, you will face monetary court fines of up to $1,000 or no more than twelve months in jail. The offense of simple possession will be charged as a felony when you have a previous sentence for sex offenses, gross vehicular manslaughter, or violent crimes. The penalties for a felony sentence include sixteen, twenty-four, or thirty-six months of jail incarceration.
Furthermore, having meth for distribution or sale is a felony whose punishment when convicted includes at most three years in jail or a maximum of $10,000 in court fines. Additionally, you will face sentence enhancement if, at the time of arrest, you had at least one kilogram of meth, engaged in the violation while in a medical institution, or sold to or used a minor to sell the controlled substance. If the D.A. can demonstrate these aspects of the case beyond reasonable certainty, you risk addition and subsequent three to fifteen years in state prison. The sentence will remain the same even when the prosecutor lacks the evidence necessary to demonstrate the drugs were for sale.
Controlled Substance Possession Related Offenses
California has three offenses that relate to illicit drug possession. The crimes are:
Having a Controlled Substance for Sale
The offense of having narcotics with intent to sell is a felony under HS 11351. To gain a sentence for the crime, the prosecutor must illustrate that:
- A high quantity of illegal drugs or controlled substances were found in your possession
- A weighing scale was located near the substance or your residence
- Hefty amounts of money in small values were retrieved during the raid
- You possessed multiple baggies suggesting you were packaging the drugs
- Numerous people were visiting your place but momentarily
When the prosecutor successfully proves these elements and you are sentenced, you will face 24, 36, or 48 months of jail incarceration. Additionally, the court can order you to pay a fine of up to $20,000.
If you compare HS 11350 with HS 11351, you will notice the two offenses are almost the same, although, in HS 11351, there must be evidence to show you planned on selling the drugs.
Controlled Substance Sale and Transportation
Per HS 11352, it is unlawful to sell controlled substances, ferry, furnish others with drugs, or give away controlled substances. Therefore, when you engage in transporting, importing, administering, or selling illegal drugs, you commit a crime per HS 11352. During prosecution, the D.A. must show the following facts:
- The substance in your possession is defined under the Controlled Substances Act
- You offered to sell, furnish or give away the illicit drugs
- You imported the substances or offered to complete the transaction in California
- You knew of the drugs’ presence
- You knew the nature of the substance in your possession
- The drugs you possessed were in usable quantity
You will be convicted when these elements are proven to the court's satisfaction. The consequences of a conviction are:
- 36, 48, or 60 months jail time
- Three, six, or nine years behind bars if it is established you ferried the drugs across two or more California counties.
- Monetary court fines not surpass $20,000
Alternatively, the court can impose formal probation or a deferred sentence in place of incarceration. Unfortunately, not everyone is qualified for alternative sentencing. The court will deny probation and drug diversion if you have been previously sentenced for furnishing or selling illegal drugs consisting of at least 14.25g of heroin. Again, if you have a prior sentence for selling any heroin quantity or possessing illegal drugs with intent to sell, you are ineligible for alternative sentencing.
Also, your sentence will be increased under particular circumstances. When you are charged with trafficking cocaine or heroin in a drug rehabilitation center, a homeless accommodation, or within 1,000 feet of a K-12 facility, you will obtain an additional twelve months on top of the baseline jail sentence.
Moreover, when you furnish a minor with drugs to sell, ferry, or offer narcotics, you will face a sentence enhancement of three, six, or nine years of state imprisonment.
Being Under the Influence of Narcotics or Controlled Substances
Per HS 11550, it is illegal to be intoxicated by an illegal drug or controlled substance. The law does not require the prosecutor to prove possession. You will be convicted if they can prove you were under the influence.
Find an Experienced Drug Crimes Attorney Near Me
When confronted with allegations of drug possession, you must talk to an experienced drug crimes attorney. At the Los Angeles Criminal Attorney, we have the skills necessary to defeat the charges. Contact us at 424-333-0943 to speak to our attorneys. We will answer your questions about the crime and offer professional legal counsel.